[Copyright © 1989 Stephen P. Halbrook; University of Dayton Law Review. Originally published as 15 DAYTON L.R. 91-124
(1989). For educational use only. The printed edition remains canonical. For citational use please obtain a back issue from
William S. Hein & Co., 1285 Main Street, Buffalo, New York 14209; 716-882-2600 or 800-828-7571. Dr. Halbrook is the
author of THAT EVERY MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL RIGHT which may be obtained from
www. independent, org/ every, html. ]
ENCROACHMENTS OF THE CROWN ON THE
LIBERTY OF THE SUBJECT: PRE-
REVOLUTIONARY ORIGINS OF THE SECOND
Stephen P. Halbrook
For a Bill of Rights guarantee that has generated so much political controversy, the second
amendment to the United States Constitution has been the subject of little historical scholarship. In
particular, the pre-Revolutionary background to this provision has been all but neglected. The second
amendment provides: "A well regulated Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be infringed." 1
The Supreme Court has enunciated the standard for constitutional interpretation as follows:
in the construction of the language of the Constitution ... we are to place ourselves as nearly
as possible in the condition of the men who framed that instrument. Undoubtedly, the framers
. . . had for a long time been absorbed in considering the arbitrary encroachments of the
Crown on the liberty of the subject . . . }
It is the purpose of this analysis to consider exactly what were "the arbitrary encroachments of the
Crown on the liberty of the subject" 3 that gave rise to the language of the second amendment that "the
right of the people to keep and bear arms shall not be infringed." 4 As the Court quoted Mr. Justice
Holmes in an analysis of the pre-Revolutionary ( Pg .92) background of the Establishment Clause of the
first amendment, "a page of history is worth a volume of logic." 5
Copyright © 1989 by Stephen P. Halbrook. All rights reserved.
Ph.D., Florida State University; J.D., Georgetown University. Attorney at Law, Fairfax, Virginia. Author of A Right to
Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees (Greenwood Press 1989) and That Every Man Be
Armed: The Evolution of a Constitutional Right (University of New Mexico Press 1984; reprinted Liberty Tree Press 1989).
1 U.S. Const, amend, n.
2 Ex parte Bain, 121 U.S. 1, 12 (1887).
3 The Court elsewhere expressed the same idea as follows: "The necessities which gave birth to the Constitution, the
controversies which preceded its formation, and the conflicts of opinion which were settled by its adoption, may properly be taken
into view for the purpose of tracing to its source any particular provision of the Constitution, in order thereby to be enabled to
correctly interpret its meaning." Knowlton v. Moore, 178 U.S. 41, 96 (1900).
4 U.S. CONST, amend. H~.
5 Committee for Public Education v. Nyquist, 413 U.S. 756, 777 n.33 (1973).
Of course, the experiences of the pre-Revolutionary period demonstrate the impetus for, but
do not limit, the respective Bill of Rights guarantees, for the framers intended "to safeguard
fundamental values which would far outlast the specific abuses which gave it birth." 6 Moreover,
constitutional protections for physical objects — such as the press, arms, and houses — are not frozen
into colonial technologies:
We may assume that the framers of the Constitution . . . did not have specifically in mind the
selection and elimination of candidates for Congress by the direct primary any more than they
contemplated the application of the commerce clause to interstate telephone, telegraph and
wireless communication, which are concededly within it. But in determining whether a
provision of the Constitution applies to a new subject matter, it is of little significance that it
is one with which the framers were not familiar. For in setting up an enduring framework of
government they undertook to carry out for the indefinite future and in all the vicissitudes of
the changing affairs of men, those fundamental purposes which the instrument itself discloses . 7
Just as the term "arms" is generic and thus includes modern firearms as a whole, the term "the
people" plainly means members of the populace at large. In 1990, the Supreme Court made clear that
all law-abiding Americans are protected by the second amendment as follows:
"the people" seems to have been a term of art employed in select parts of the Constitution. .
. . The Second Amendment protects "the right of the people to keep and bear Arms," and the
Ninth and Tenth Amendments provide that certain rights and powers are retained by and
reserved to "the people." See also U.S. Const., Amdt. 1, ("Congress shall make no law . . .
abridging . . . the right of the people peaceably to assemble"); Art. I, § 2, cl. 1 ("The House
of Representatives shall be composed of Members chosen every second year by the People
of the several States") (emphasis added). While this textual exegesis is by no means
conclusive, it suggests that 'the people' protected by the Fourth Amendment, and by the First
and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth
Amendments, refers to a class of persons who are part of a national community or who have
otherwise developed sufficient connection with this country to be considered part of that
(pg.93) community. 8
Traditionally, the Supreme Court has paid little attention to the second amendment. It noted
in the Dred Scott case that recognition of African Americans as citizens would exempt them from
6 United States v. Chadwick, 433 U.S. 1, 9 (1977). "The absence of a contemporary outcry against warrantless searches
in public places ... in colonial America" does not diminish fourth amendment protections today. Id. at 8. Actually, as will be seen,
the colonists did complain about warrantless searches for arms in public places.
7 Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 226 (1986) (quoting, United States v. Classic, 313 U.S.
8 United states v. Verdugo-Urquidez, 1 10 S. Ct. 1056, 1060-61 (1990). In his dissent, Justice Brennan noted that "the
term 'the people' is better understood as a rhetorical counterpoint to 'the government,' such that rights that were reserved to 'the
people' were to protect all those subject to 'the government.' The people' are 'the governed.'" Id. at 1072 (citation omitted).
Justice Brennan also reviewed the drafting history of the fourth amendment, noting that the Framers "could have limited
the right to 'citizens,' 'freemen,' 'residents,' or the 'American people.' Id. at 1073. "Throughout that entire process, no speaker or
commentator, pro or con, referred to the term 'the people' as a limitation." Id. at 1074. Similarly, the Framers could have limited
the second amendment right to select militias, but instead used the term "the people."
Finally, Justice Brennan pointed out that rights are not "given to the people from the government." Id. at 1073. The
Framers of the Bill of Rights did not purport to "create" rights. Rather, they designed the Bill of Rights to prohibit our Government
from infringing rights and liberties presumed to be pre-existing." Id.
"police regulations" 9 and allow them "to keep and carry arms wherever they went." 10 During
Reconstruction, the Court stated that the rights of the people "peaceably to assemble for lawful
purposes" 11 and "of bearing arms for a lawful purpose" 12 were not granted by the Constitution
because they existed long before its adoption. 13 A later opinion again recognized "the right of the
people to keep and bear arms" 14 and repeated that the second amendment is a limitation "upon the
power of Congress and the National government . . . ." 15
At the turn of the century, the Court wrote concerning free speech and press and "the right
of the people to keep and bear arms," that "the law is perfectly well settled that the first ten
amendments to the constitution, commonly known as the Bill of Rights, were not intended to lay
down any novel principles of government, but simply to embody certain guaranties and immunities
which we inherited from our English ancestors . . . ." 16
Only in United States v. Miller 11 has the high court addressed the ( Pg .94) second amendment,
and even then only in rudimentary form. Absent evidence in the trial court that a sawed-off shotgun:
at this time has some reasonable relationship to the preservation or efficiency of a well
regulated militia, we cannot say that the Second Amendment guarantees the right to keep and
bear such an instrument. Certainly it is not within judicial notice that this weapon is any part
of the ordinary military equipment or that its use could contribute to the common defense. 18
The test was not whether the person in possession of the arm was a member of a formal militia unit,
but whether the arm at this time was ordinary military equipment or its use could potentially assist
in the common defense. 19 Referring to the militia clause of the second amendment, the Supreme Court
stated that "to assure the continuation and render possible the effectiveness of such forces the
declaration and guarantee of the second amendment were made." 20 The court then surveyed colonial
and state militia laws to demonstrate that "the Militia comprised all males physically capable of acting
9 Scott v. Sanford, 60 U.S. (19 How.) 393, 416-17 (1857).
11 United States v. Cruikshank, 92 U.S. 542, 551, 553 (1876).
14 Presser v. Illinois, 116 U.S. 252, 265 (1886).
15 Id; see also Miller v. Texas, 153 U.S. 535, 538 (1894) which repeats that the restrictions of the second and fourth
amendments operate "upon the Federal power." In Cruikshank, Presser, and United States v. Miller, the Court refused to find first,
second, or fourth amendment protection against private conspiracies or state action, but did not consider whether the guarantees
are incorporated into the fourteenth amendment so as to limit state action.
16 Robertson v. Baldwin, 165 U.S. 275, 281-82(1897) (These comments were directed to free speech and pass and the
right of the people to keep and bear arms.).
17 307 U.S. 174(1939).
18 Id. at 178. Since no factual record was made in the trial court that a "sawed-off shotgun could have militia uses,
the Court did not consider whether the tax and related registration requirements of the National Firearms Act violated the second
amendment. However, the Court has held of a newspaper tax: "It is a license tax — a flat tax imposed on the exercise of a privilege
granted by the Bill of Rights. A state may not impose a charge for the enjoyment of a right granted by the Federal Constitution."
Murdock v. Pennsylvania, 319 U.S. 105, 113 (1943). See Thomas v. Collins, 323 U.S. 516, 538-40 (1944) (state may not require
registration of persons who exercise first amendment rights); Minneapolis Star v. Minnesota Comm. of Rev., 460 U.S. 575 (1983)
(special tax on only a few newspapers invalid).
19 307 U.S. at 178.
in concert for the common defense" 21 and that "these men were expected to appear bearing arms
supplied by themselves and of the kind in common use at the time." 22
Unfortunately, the scant opinion in Miller does not survey "the arbitrary encroachments of
the Crown on the liberty of the subject. " 23 Nonetheless, the philosophy behind the second amendment
was well articulated in the commentaries of Justice Joseph Story and Judge ( Pg .95) Thomas M. Cooley,
which Miller approvingly cites. 24 Justice Story stated:
The right of the citizens to keep and bear arms has justly been considered, as the palladium
of the liberties of the republic; since it offers a strong moral check against usurpation and
arbitrary power of the rulers; and will generally, even if these are successful in the first
instance, enable the people to resist and triumph over them. 25
The Miller court quoted Judge Cooley, as follows:
Among the other safeguards to liberty should be mentioned the right of the people to keep and
bear arms .... The alternative to a standing army is 'a well-regulated militia'; but this cannot
exist unless the people are trained to bearing arms. The federal and state constitutions
therefore provide that the right of the people to bear arms shall not be infringed . . . . 26
While it has not discussed the second amendment in any detail since Miller, the Supreme
Court has recently denied that some Bill of Rights freedoms "are in some way less 'fundamental' than"
others. 27 "Each establishes a norm of conduct which the Federal Government is bound to honor — to
21 Id. at 179.
23 This is not surprising, not only because the petitioner did not file a brief, but also because no historical scholarship
existed on the subject at that time. "The arbitrary encroachments of the Crown" which gave rise to the second amendment are only
recently coming to light. Many of the original sources reviewed in this article are published for the first time since their original
publication in the pre-Revolutionary period, and expand on research previously published by this author. See S. HALBROOK, ARIGHT
to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees 1-19 (1989) (chapter entitled "The
Inhabitants of Boston Disarmed"); S. HALBROOK, THAT EVERY MAN Be Armed: The EVOLUTION OF A CONSTITUTIONAL RIGHT
58-64 (1984) [hereinafter THE EVOLUTION OF A CONSTITUTIONAL RIGHT].
24 307 U.S. at 182 n.3.
25 2J.STORY,COMMENTARIESONTHECONSTrTUTION646(5thed. 1891). "One of the ordinary modes, by which tyrants
accomplish their purpose without resistance is, by disarming the people, and making it an offense to keep arms. ..." J. STORY, A
Familiar Exposition of the Constitution of the United States 264 (1893).
26 T. Cooley, Constitutional Limitations 729 ; T. Cooley, General Principles of Constitutional Law 281-82
(2d ed. 1891) states further:
The right declared was meant to be a strong moral check against the usurpation and arbitrary power of
rulers, and as a necessary and efficient means of regaining rights when temporarily overturned by usurpation.
The right is General — It may be supposed from the phraseology of this provision that the right to keep and
bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent
.... But the law may make provision for the enrollment of all who are fit to perform military duty, or of a small
number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled,
the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it
was meant to hold in check. The meaning of the provision undoubtedly is that the people from whom the militia
must be taken shall have the right to keep and bear arms, and they need no permission or regulation of law for
T. Cooley, General Principles of Constitutional Law at 281-82.
27 Valley Forge Christian College v. Americans United, 454 U.S. 464, 484 (1982). The Court stated in Ullmann v.
United States, 350 U.S. 422, 426-29 (1956). "This constitutional protection must not be interpreted in a hostile or niggardly spirit
.... Such a view does scant honor to the patriots who sponsored the Bill of Rights as a condition to acceptance of the Constitution
by the ratifying States." Id. at 426. "As no constitutional guarantee enjoys preference, so none should suffer subordination or
no greater or lesser extent than any other inscribed ( P g%) in the Constitution. . . . Moreover, we know
of no principled basis on which to create a hierarchy of constitutional values . . . ." 2S The Supreme
Court has also held that "when we do have evidence that a particular law would have offended the
Framers, we have not hesitated to invalidate it on that ground alone." 29
In order to ascertain what would have offended the Framers, one must analyze "the arbitrary
encroachments of the Crown on the liberty of the subject" in the pre-Revolutionary period. This
article traces the impetus for the second amendment in the following stages: the colonists' assertion
of the right to keep and bear arms when Boston was first occupied by a standing army in the 1768-69
period; the attempts to disarm the inhabitants of Boston, and the ban on importation of firearms in
1774; and the use of arbitrary searches and seizures for arms, culminating in the actual disarming of
the inhabitants in 1775. These events provide a clear explanation of why the Framers adopted the
second amendment, give insight into the perceived evil the amendment was designed to prevent, and
accordingly, contribute to an understanding of the scope of the right guaranteed.
II. The Several Arbitrary Encroachments of the Crown on
the Liberty of the Subject.
The following sections are detailed explanations of the various stages of encroachment by the
English crown upon the liberties of the colonial subjects. These encroachments are crucial to a
complete understanding of the reasons behind the adoption of the second amendment.
A. More Grievous to the People, Than Any Thing Hitherto Made Known
In the late summer of 1768, Massachusetts Governor Francis Bernard informally let it be
known that British troops were coming to Boston. 30 Enraged patriots discussed resistance, and on
the evening of September 1 1 , James Otis, Samuel Adams and Joseph Warren met to draft resolutions
to be presented at a town meeting the following morning. 31 A great number of the people of Boston
attended the stormy two day meeting at Faneuil Hall.
Speeches were made and resolutions deploring taxation and standing armies adopted. Four
hundred muskets — military firearms of the period which belonged to the town — lay exposed on the
floor and some ( Pg .97) were perhaps waved in the air. 32 Some in the assembly argued that the muskets
should be given out to the people then and there, but the moderator of the meeting, James Otis,
persuasively argued: "[t]here are the arms; when an attempt is made against your liberties, they will
be delivered. . . ." 33 Therefore, instead of arming the citizens, the assembly considered among the
pre-prepared resolutions the following:
Upon a Motion made and seconded, the following vote was passed by a very great
deletion. ... To view a particular provision of the Bill of Rights with disfavor inevitably results in a constricted application of it.
This is to disrespect the Constitution." Id.
28 454 U.S. at 484.
29 Minneapolis Star v. Minnesota Comm. of Rev., 460 U.S. 575, 583-84 n.6 (1983).
30 J. Alden, General Gage in America 160 (1969).
31 W. Wells, The Life and Public Services of Samuel Adams 212-13 (2d ed. n.d.).
33 R. Frothlngham, The Life and Times of Joseph Warren 85-86 (1865).
WHEREAS, by an Act of Parliament, of the first of King William and Queen Mary,
it is declared, that the Subjects being Protestants, may have arms for their Defence; It is the
Opinion of this town, that the said Declaration is founded in Nature, Reason and sound Policy,
and is well adapted for the necessary Defence of the Community.
And Forasmuch, as by a good and wholesome Law of this Province, every listed
Soldier and other Householder (except Troopers, who by Law are otherwise to be provided)
shall always be provided with a well fix'd Firelock, Musket, Accouterments and Ammunition,
as in said Law particularly mentioned, to the Satisfaction of the Commission Officers of the
Company; and as there is at this Time prevailing Apprehension, in the Minds of many, of an
approaching War with France: In order that the Inhabitants of this Town may be prepared in
Case of Sudden Danger: VOTED, that those of the Inhabitants, who may at present be
unprovided, be and hereby are requested duly to observe the said Law at this Time. 34
After several days of uncertainty and probable paranoia shared by both the royal governor and
the patriots, the Boston Gazette reported a warning signed by "A.B.C." — probably Samuel
Adams — which was reprinted throughout the colonies:
It is reported that the Governor has said, that he has Three Things in Command from
the Ministry, more grievous to the People, than any Thing hitherto made known. It is
conjectured 1st, that the Inhabitants of this Province are to be disarmed. 2d. The Province to
be governed by Martial Law. And 3d, that a Number of Gentlemen who have exerted
themselves in the Cause of their Country, are to be seized and sent to Great-Britain.
Unhappy America ! When thy Enemies are rewarded with Honors and Riches ; but thy
Friends punished and ruined only for asserting thy Rights, and pleading for thy
Freedom. 35 ( Pg .98)
Two days after publication of the above, British troops landed and took over key points in
Boston, including Faneuil Hall. 36 In response to the allegations which first appeared in the Boston
Gazette — the leading patriot organ in all of the colonies, and the mouthpiece of Samuel Adams,
James Otis, Josiah Quincy, and John Adams 37 — Richard Draper, official printer to the royal
governor, 38 issued a denial. "We are authorized to inform the Publick, that the Article of the Report
of the Sayings of the Governor ... is an infamous Lye, invented for the wicked Purpose of raising
groundless Fears of, and creating an unnatural Disaffection to his Majesty and his Government." 39
A.B.C. shot back:
I observe Mr. Draper in his last paper says he is authorized to assure the Publick, that
the Reports mentioned in your Paper of September 26, was an infamous Lie .... Mr. Draper
(as he was about the Town, and these Reports were the subject of much Conversation) must
have known he was publishing a Falsehood .... When an armed Force is bro't in upon a
34 Boston Chronicle, Sept. 19, 1768, at 363, col. 2.
35 Georgia Gazette (Savannah), Nov. 2, 1768, at 1, col. 1; Maryland Gazette (Annapolis), Oct. 20, 1768, at 3, Col. 1;
Boston Gazette, Sept. 26, 1768, at 3, cols. 1-2.
36 Boston Evening Post, Oct. 3, 1768, at 3, col. 2.
37 S . Korbe, The Development of the Colonial Newspaper 1 1 8-20 ( 1 944) .
38 Mat 114-15.
39 The Essex Gazette (Salem), Oct. 4, 1768, at 40, col. 3. This was apparently published first in Draper's Massachusetts
Gazette, but the issue is missing from the Library of Congress collection .
peaceable Country against their Consent, and in Violation of their Rights as Men and British
subjects, we have Reason to believe that soon unheard of Oppressions are coming upon us. 40
Efforts may have been made to disarm the citizens. One report stated:
That part of the troops had been quartered in the castle and barracks, and the remainder of
them in some old empty houses. That the inhabitants had been ordered to bring in their arms,
which in general they had complied with; and that those in possession of any after the
expiration of a notice given them, were to take the consequences. 41
The report did not disclose where this surrender of arms allegedly took place.
It is difficult to imagine much compliance with such an order, since such reports were not
widespread. However, disarming the colonists was clearly being contemplated. From London, "it is
said orders will soon be given to prevent the exportation of either naval or military stores,
gun-powder, &c. to any part of North- America." 42
With the occupation of Boston, publication of the column "Journal of the Times" began in
colonial newspapers. It soon became the most ( Pg .99) widely circulated pre-Revolutionary writing
following Dickinson's Letters from a Pennsylvania Farmer.^ It was written in Boston, sent to New
York secretly and published in the New York Journal.^ It was then reprinted in newspapers all over
the colonies and even in England. Its anonymous authors probably included Samuel Adams, John
Adams, Josiah Quincy, and various editors. 45
In the first of several references to the arms issue, the Journal found a hidden irony in the
illegal quartering of troops among the populace:
Some of the Consequences of bringing the Troops into this Town, in direct violation of the Act
of Parliament, . . . instead of Quartering them in the Barracks on Castle Island, are likely to
be the scattering proper Tutors through the Country, to instruct the Inhabitants in the modern
Way of handling the Firelock and exercising the Men . . . . 46
However, according to reports coming from London, the colonists needed little instruction:
The total number of the Militia, in the large province of New-England, is upwards of 150,000
men, who all have and can use arms, not only in a regular, but in so particular a manner, as
to be capable of shooting a Pimple off a man's nose without hurting him. 47
The King's speech at the opening of Parliament, and the debate in the House of Commons,
both of which questioned the loyalty of the colonists, prompted the writers of the Journal to make
an ongoing defense of the Boston vote, calling upon each citizen to arm themselves. Samuel Adams,
author of the next editorial on the subject, argued:
Boston Gazette, Oct. 3, 1768, at 2, col. 2.
New York J., Feb. 2, 1769, at 2, col. 2.
Boston Gazette, Oct. 17, 1768, at 2, col. 3.
Dickinson, Letters from a Pennsylvania Farmer, (1903) (republished Scholarly Press 1969).
Boston Under Military Rule [ 1 768- 1 769] as Revealed in a Journal of the Times ix ( 1 97 1 ) .
New York J., Oct. 27, 1768, at 2, col. 3.
Boston Evening Post, Nov. 21, 1768, at 2, col. 3.
For it is certainly beyond human art and sophistry, to prove the British subjects, to whom the
privilege of possessing arms is expressly recognized by the Bill of Rights, and, who live in
a province where the law requires them to be equip'd with arms, &c. are guilty of an illegal
act, in calling upon one another to be provided with them, as the law directs. . . . One man has
as good reason to affirm, that a few, in calling for a military force under pretence of
supporting civil authority, secretly intended to introduce a general massacre, as another has
to assert, that a number of loyal subjects, by calling upon one another to provided with arms,
according to law, intended to bring on an insurrection.ipgioo)
It will be equally difficult to prove it illegal, for a number of British subjects, to invite
as many of their fellow subjects as they please, to convene and consult together, on the most
prudent and constitutional measures for the redress of their grievances . . . . 48
In an article he signed E.A., Samuel Adams published perhaps the most remarkable analysis
of the right to keep and bear arms in the pre-Revolutionary era. He recalled the absolute English
monarchs, with their doctrines of non-resistance and divine right, and traced the reigns of "a race of
kings, bigoted to the greatest degree to the doctrines of slavery and regardless of the natural,
inherent, divinely hereditary and indefeasible rights of their subjects." 49 Quoting freely from Sir
William Blackstone, Adams assessed the results of the Glorious Revolution of 1689:
At the revolution, the British constitution was again res tor 'd to its original principles,
declared in the bill of rights; which was afterwards pass'd into a law, and stands as a bulwark
to the natural rights of subjects. "To vindicate these rights, says Mr. Blackstone, when
actually violated or attack'd, the subjects of England are entitled first to the regular
administration and free course of justice in the courts of law — next to the right of petitioning
the King and parliament for redress of grievances — and lastly, to the right of having and
using arms for self-preservation and defence." These he calls "auxiliary subordinate rights,
which serve principally as barriers to protect and maintain inviolate the three great and
primary rights of personal security, personal liberty and private property" : And that of
having arms for their defense he tells us is "a public allowance, under due restrictions, of the
natural right of resistance and self-preservation, when the sanctions of society and laws are
found insufficient to restrain the violence of oppression. " — How little do those persons attend
to the rights of the constitution, if they know anything about them, who find fault with a late
vote of this town, calling upon the inhabitants to provide themselves with arms for their
defence at any time; but more especially, when they had reason to fear, there would be a
necessity of the means of self preservation against the violence of oppression. 50
The above remark clearly implied that private citizens could use arms to protect themselves
from military oppression. The passage continues even more explicitly as follows:( P g.ioi)
Everyone knows that the exercise of the military power is forever dangerous to civil
rights .... But there are some persons, who would, if possibly they could, perswade the
people never to make use of their constitutional rights or terrify them from doing it. No
48 Boston Gazette, Jan. 30, 1769, at 2, col. 1 (signed "Shippen"); see also 1 THE WRITINGS OF SAMUEL ADAMS 299
49 Boston Gazette, Feb. 27, 1769, at 3, col. l;seealso 1 The Writings of Samuel Adams 317.
50 Id. at 317-18. Adams is quoting verbatim from 1 W. BLACKSTONE, COMMENTARIES * 140-41, * 143-44.
wonder that a resolution of this town to keep arms for its own defence, should be represented
as having at bottom a secret intention to oppose the landing of the King's troops: when those
very persons, who gave it this colouring, had before represented the peoples petitioning their
Sovereign, as proceeding from a. factious and rebellious spirit . . . . 51
In yet another installment, the Journal authors continued to defend the private right to have
arms, and implied that military oppression could be rightfully resisted:
Instances of the licentious and outrageous behavior of the military conservators of
the peace still multiply upon us, some of which are of such a nature, and have been carried
to so great lengths, as must serve fully to evince that a late vote of this town, calling upon the
inhabitants to provide themselves with arms for their defence, was a measure as prudent as
it was legal, such violences are always to be apprehended from military troops, when
quartered in the body of a populous city; but more especially so, when they are led to believe
that they are become necessary to awe a spirit of rebellion, injuriously said to be existing
therein. It is a natural right which the people have reserved to themselves, confirmed by the
Bill of Rights, to keep arms for their own defence; and as Mr. Blackstone observes, it is to be
made use of when the sanctions of society and law are found insufficient to restrain the
violence of oppression , 52
After the initial shock of occupation, and without increased British aggression against the
colonists, colonial debate turned to other topics. While tempers flared at the Boston Massacre of
1770, issues concerning the right to keep and bear arms subsided until British policy would seek a
military solution in 1774.
B. The Divan Proposes Disarming the Inhabitants
In early 1774, the Boston Gazette advertised that a merchant "has just imported for sale, a
neat assortment of guns, complete with bayonets, steel rods and swivels, a few neat fowling pieces,
pocket pistols .... " 53 This exemplifies the kinds of firearms to which the colonists believed they
were entitled: military shoulder arms with bayonets, shotguns for hunting fowl, and small pistols to
carry for protection.
The months passed and relations became irreversibly hostile. Besides (pg.102) acts which sought
to destroy the New England shipping industry, the Parliament passed legislation to allow numerous
positions of colonial authority to be appointed by the Crown rather than through local mechanisms.
These "Mandamus Counsellors" who tried to rule Boston were known to the patriots as "the Divan,"
after the privy council of the Ottoman Empire. Turkish rule was associated with the disarming of the
populace and similar policies considered tyrannical. 54
51 Mat 318.
52 New York J., Apr. 13, 1769, at 1, col. 3 (Supp.).
53 Boston Gazette, Jan. 24, 1774, at 1, col. 3.
54 The Boston Gazette, March 6, 1769, at 1, col. 3 reported:
Some time ago the Grand seignior ordered all his subjects to give up the arms they were possessed of, in
order to be publically sold; in consequence of which, great quantities of these arms have been brought to market
but they were for the most part in very bad condition. We learn upon this occasion that the Greeks, who inhabit
some islands in the Archipelago, refuse to comply with this order, alleging that they want their arms for their
It is hardly surprising that the Divan immediately considered a prohibition on possession of
arms by the people of Boston and perhaps the whole province. Two accounts of this matter were
widely reprinted throughout colonial newspapers. One explains as follows:
It is said, it was proposed in the Divan last Wednesday, that the inhabitants of this
Town should be disarmed, and that some of the new-fangled Counsellors consented thereto,
but happily a majority was against it. — The report of this extraordinary measure having been
put in Execution by the Soldiery was propagated through the Country, with some other
exaggerated stories, and, by what we are told, if these Reports had not been contradicted, we
should by this date have had 40 or 50,000 men from the Country (some of whom were on the
march) appear 'd for our Relief. 55
The Divan apparently felt a firearms ban to be unenforceable at that time. Besides the
anticipated widespread protest, which indeed occurred, the counsellors were personally intimidated
by the patriots; the newspapers were filled with reports of large numbers of patriots surrounding
houses of counsellors and, through threats, forcing their resignations. Further, General Gage, who
also served as governor, may have advised against the measure. As the press reported later in
reference to a letter of Gage written in this period: "General Gage's Letters being read in the House
of Commons, it appears from one of them that it had been recommended to him by Lord Dartmouth
to disarm some of the Colonies, which in his Opinion, was not practicable, till he was Master of the
The second widely-published account of the Divan's vote gave notice of another infringement
not mentioned above:( Pg .io3)
Tis said an article deliberated upon by the Divan last Wednesday was the disarming
of the town of Boston, and as much of the province as might be, to which sundry new
counsellors advised. Was this also for the good of your country, Gentlemen!
Governor Gage has at length laid his hand on private property, so far as to deny one
cask of powder to be delivered out of the powder house whatever. 57
The colonists obviously believed that the right to keep and bear arms included ammunition.
The black gunpowder of that age was far more volatile than modern smokeless powder, and in urban
areas larger quantities were stored by merchants and other private owners in a public powder house. 58
Gage's seizure of powder may have extended to shops or other places, for it was also reported "that
General Gage has taken possession of all the gunpowder he could discover [in Boston], which is
proof that the new Governor thinks there is something to be feared from the virtuous spirit of the
55 Mass. Spy, Sept. 8, 1774, at 3, col. 3.
56 Boston Gazette, Apr. 17, 1775, at 3, col. 2.
57 Boston Gazette, Sept. 5, 1774, at 3, col. 2.
58 A 1792 Act, which likely stemmed from colonial legislation, required approval of the fire ward for transportation
of gunpowder in the streets of Boston "in any quantity, exceeding twenty-five pounds, being the quantity allowed by law to be kept
in shops for sale." 2 PERPETUAL LAWS OF THE COMMONWEALTH OF MASSACHUSETTS 144 (1801).
59 Pa. J., Dec. 14, 1774, at 1, col. 2.
Gage's seizure of privately-owned gunpowder became a major complaint of the Suffolk
County Resolutions, which were widely published and acclaimed throughout the colonies. The
meeting of Suffolk delegates resolved in part:
That the Fortifications begun and now carrying upon Boston Neck are justly alarming
to this County, and give us reason to apprehend some hostile intention against that town, more
especially as the Commander in Chief has in a very extraordinary manner removed the powder
from the magazine at Charleston, and has also forbidden the keeper of the magazine at Boston
to deliver out to the owners the powder which they had lodged in said magazine. 60
The Suffolk delegates sent a committee, which included Joseph Warren, to General Gage with
a list of grievances, including one stating that "the ferment now excited in the minds of the people,
is occasioned by some late transactions, ... by withholding the powder lodged in the magazine of the
town of Boston, from the legal proprietors . . . ." 61 Ignoring this specific charge, Gage responded by
a countercharge: "I would ask what occasion there is for such numbers going armed in and out of the
Town, and through the country in an hostile manner? or ( Pg .io4) why were the guns removed privately
in the night, from the battery at Charleston?" 62
Paul Revere rushed copies of the Suffolk Resolutions and Address to the Continental
Congress in Philadelphia. The Congress unanimously denounced "these wicked ministerial
measures." 63 The Massachusetts Provincial Congress also attacked Gage because he:
invaded private property by unlawfully seizing and restraining large quantities of ammunition
in the arsenal at Boston and sundry pieces of ordnance in the same town — committed to the
custody of his troops the arms, ammunition, ordnance and warlike stores of all sorts, provided
at the public expense for the use of the province .... Resolved, that as the Security of the
Lives, Liberties and Properties of the inhabitants of this Province depends under Providence
on their knowledge and skill in the art military, and in their being properly and effectually
armed and equipt, if any of said inhabitants are not provided with arms and ammunition
according to law, they immediately provided themselves therewith. . . . 64
When Gage declared the Provincial Congress to be an unlawful assembly, a patriot with a
sense of humor responded with a poem:
Since an Assembly most unlawful,
At Cambridge met in Congress awful,
October last, did then presume,
The Powers of Government t' assume;
And slighting British Administration,
Dar'd rashly seek their own Salvation;
By ordering every strudy Farmer,
To be prepar'd with proper Armour.
(Tis what indeed the Law requires,
60 Boston Gazette, Sept. 19, 1774, at 1, col. 2.
63 1 Journals of the Continental Congress 39 (1904).
64 Boston Gazette, Oct. 31, 1774, at 3, col. 1.
But different quite from our Desires.) 65
C. Colonist's Second Major Grievance Concerned Warrantless Searches and Seizures of
Warrantless searches for and seizures of firearms became the next major grievance of the
patriots. British policy quickly evolved from debates in the Divan and closing of the powder house
to the temporary detention of citizens and searches of their persons and places in order to confiscate
their weapons. 66 Searches and seizures were targeted first against persons bearing arms in public
places, and finally against persons ( Pg .io5) keeping arms in their homes. 67
While the Mandamus Counsellors found an official ban temporarily impolitic, the Redcoats
were already beginning to seize firearms. 68 Just days after the vote in the Divan, Joseph Warren wrote
to Samuel Adams: "Mr. Samuel Phillips, jun., of Andover, was this day carrying about a dozen
fire-arms over Charleston ferry. The sloop-of-war lying in the river dispatched a boat, and seized
By mid-October 1774, the British apparently instituted a general policy of searching places
for arms and seizing them, which only induced the populace to arm themselves even more. The
address from Worchester County presented to General Gage stated:
This County are constrained to observe, they apprehend the People justified in
providing for their own Defense, while they understood there was no passing the Neck without
Examination, the Cannon at the North-Battery spiked up, & many places searched, where
Arms and Ammunition were suspected to be; and if found seized; yet as the People have never
acted offensively, nor discovered any disposition so to do, as above related, the County
apprehend this can never justify the seizure of private Property. 70
Gage denied any hostile intent, but refused to respond to the specific charges. 71
While assuring the authorities of their loyalty, the patriots made thinly-veiled threats
concerning their prowess with firearms. 72 The Gazette stated: "[bjesides the regular trained militia in
New-England, all the planters sons and servants are taught to use the fowling piece from their youth,
and generally fire balls with great exactness at fowl or beast." 73 However, it reiterated complaints
about seizures of gunpowder stores, both public and private, and added: "[b]ut what most irritated
the People next to seizing their Arms and Ammunition, was the apprehending six gentlemen, select
men of the town of Salem, who had assembled a Town meeting. . . ." 74 In short, the seizure of arms
irritated the people even more than violation of the right to assemble.
Boston Gazette, Nov. 14, 1774, at 3, col. 2.
Boston Gazette, Sept. 5, 1774, at 3, col. 2.
J. Adams, Revolutionary New England 1691-1776, 418 (1923).
R. Frothingham, supra note 33, at 382.
Boston Gazette, Oct. 17, 1774, at 2, cols. 2-3.
Id. at col. 3.
Boston Gazette, Dec. 5, 1774, at 4, col. 1.
Meanwhile, individuals armed themselves and formed independent militias to oppose the
standing army. These were not the go vernmentally- sanctioned, select militia, but, in the words of
Josiah Quincy, "a < Pg . 106) well regulated militia composed of the freeholders, citizens, and husbandmen,
who take up arms to preserve their property as individuals, and their rights as freemen." 75
In one incident:
a party of the militia being at exercise on Boston common, a party of the army surrounded
them and took away their fire arms; immediately thereupon a larger party of the militia
assembled, pursued the Army, and retook their fire arms. Whereupon the Governor ordered
the man of war to fire upon the Town, which was instantly obeyed; several houses were
damaged, and only 6 people killed. 76
As is usual in police search and seizure operations, a cat-and-mouse game was played in which
the searchers and the searchees exchanged charges which strained credibility. A tory queried, "who
carried cannon off privately in a boat to a mill-pond, and when detected declared it to be nothing but
a boat-load of old ironT 11 An observer in Boston wrote: "Have seen twenty load [of military
supplies] covered with dung go out of town myself, but lately all carts have been searched by the
[British] guards, and unluckily last Saturday evening a load of cartridges were seized packed in candle
boxes. . . ." 7S By contrast, a patriot — whose comrades were arming themselves as rapidly as
possible — sought to depict them as penmen:
We are told, that it is an undoubted act, that the supposed boxes of small arms, lead, & c.
which were lately seized by the custom-house officers at New York, and caused so much
disturbance there, turns out to be — What? — Why only a few boxes of Printing Typesl Aye,
says a wag, and what was the Gun-Powder? — Why truly, nothing but two cakes of Printing
Despite this feigned innocence, patriots sought to scare the British with talk about the
colonists' expertise with guns. The pamphlet printed all over the colonies and even in England
credited with convincing the British of this expertise was written by Charles Lee, who was influential
in the Continental Congress. 80 A key passage states:
The yeomanry of America besides infinite advantages over the peasantry of other countries,
are accustomed from their infancy to firearms; they are expert in the use of them. Whereas the
lower and middle people of ( Pg .io7) England, are, by the tyranny of certain laws, almost as
ignorant in the use of a musket, as they are of the ancient Catapulta. 81
Search and seizure for contraband always leads to entrapment, and the colonial epoch was
no exception. A rural man named Thomas Ditson merely asked to buy a gun, and ended up being
J. Quincy, Observations on the Act of Parliament Commonly Called the Boston Port-Bex 413 (1774).
Mass. Gazette, Dec. 29, 1774, at 2, col. 2.
Mass. Gazette, Jan. 19, 1775, at 2, col. 2.
R. Gross, The Minutemen and Their World 68 (1976).
Conn. Courant, Jan. 16, 1775, at 2, col. 3.
Pamphlets and the American Revolution iii-iv, vii (1976).
Essex Gazette, Jan. 17, 1775, at 4, col. 1.
tarred and feathered by British soldiers. 82 In his affidavit, Ditson claimed, "I enquired of some
Townsmen who had any Guns to sell; one of whom I did not know, replied he had a very fine Gun
to sell." 83 Since the one who offered the gun was a soldier, Ditson continued:
I asked him if he had any right to sell it, he reply'd he had, and that, the Gun was his
to dispose of at any time; I then askd him whether he tho't the Sentry would not take it from
me at the Ferry, as I had heard that some Persons had their Guns taken from them, but never
tho't there was any law against trading with a Soldier; ... I told him I would give four Dollars
if there was no risque in carrying it over the Ferry; he said there was not .... I was afraid .
. . that there was something not right . . . and left the Gun, and coming away he followed me
and urg'd the Gun upon me ... . 84
When he finally paid money to the soldier, several other soldiers appeared and seized Ditson,
who they proceeded to tar and feather. However, instead of entrapment, the soldier swore in his
affidavit, it was a case of a rebel trying to obtain arms and urging a soldier to desert. The citizen said
"that he would buy more Firelocks of the Deponent, and as many as he could get any other Soldier
to sell him. . . ," 85
Samuel Adams described the Ditson affair in a letter as follows:
A simple Country man was inveigled by a Soldier to bargain with him for a Gun; for this he
was put under Guard and the next day was tarred and feathered by the Officers and Soldiers
of the 47 ... . We are at a Loss to account for this Conduct of a part of the Army in the face
of the Sun unless there were good Assurances that the General [Gage] would connive at it.
However, he says he is very angry at it. 86
Meanwhile, the British Ministers were taking steps to dry up firearms from the source.( Pg .io8)
D. King George's Ban On Importation of Firearms
News travelled slowly from England across the Atlantic, but in December 1774 the colonists
learned that two months before King George and his Ministers had decreed a ban on importation of
firearms into the colonies as a further method of disarming the populace.
The Gazette reported this new violation of the colonists' rights as follows:
We learn from undoubted Authority, that Lord Dartmouth, Secretary of State, has
wrote a circular Letter to the Governors upon this Continent, informing them, That his
Majesty has thought fit, by his Order in Council, dated the 19th October 1774, to prohibit the
Exportation from Great Britain, of Gun Powder or any Sort of Arms or Ammunition, and has
signified to them his Majesty's Command, that they do take the most effectual Measures for
arresting, detaining and securing any Gun Powder or any Sort of Arms or Ammunition, which
may be attempted to be imported into the Province over which they respectively preside,
unless the Masters of the Ship having such Military Stores on Board shall produce a License
82 See Mass. Gazette, Mar. 17, 1775, at 3, col. 1.
85 Id. at col. 2.
86 3 The Writings of Samuel Adams 200 (1907).
from his Majesty or the Privy Council for the Exportation of the same from some of the Ports
of Great-Britain. 87
The decree strictly regulated any exportation of arms and ammunition from England, and was
endorsed by Townshend, North, and the other hated Ministers. 88 Accounts published in London and
reprinted in ( Pg .io9) colonial newspapers explain what precipitated the import ban. First, exaggerated
accounts of armed struggle in the colonies were reaching England. One such account states:
An order of the council, dated the 19th inst. is published in this night's Gazette,
prohibiting the exportation of gun powder and arms, from any point of the kingdom. . . .
By a letter received by a merchant in this city from New York . . . [the ship left New
York in mid-September] the Captain says an express was just mailed there from Boston, with
an account that there had been an engagement between the troops and the Bostonians; the
Troops set fire to the town, which was all in flames when the express came away. What gives
the greatest credit to this account is, the entire prohibition of gunpowder, and all sorts of arms
Notwithstanding the ministerial accounts from America are kept a profound secret the
late embargo on gunpowder proves their fears respecting that country to be very great. Great
quantities of nitre and salt-petre just shipped, are again disembarking in consequence of
Saturday night's Gazette. 89
While British intelligence may have discounted the credibility of such reports, they could see
tangible evidence that the colonists were arming themselves, because English gunmakers were
87 Boston Gazette, Dec. 12, 1774, at 3, col. 1.
88 As reprinted in the Conn. Courant, Dec. 19, 1774, at 3, cols. 2-3:
At the Court at St. James's the 19th Day of October, 111 A.
The KING'S most excellent MAJESTY in Council,
Earl of Rockford, Lord Visount Townshend,
Earl of Dartmouth, Lord Mansfield,
Earl of Suffolk, Lord North.
WHEREAS an Act of Parliament has passed in the Twenty Ninth Year of the Reign of his late Majesty
King George the Second, intitled, "An Act to empower his Majesty to prohibit the Exportation of Saltpetre, and
to enforce the Law for impowering his Majesty to prohibit the Exportation of Gunpowder, or any sort of Arms
or Ammunition, and also to empower his Majesty to restrain the carrying coastways of Saltpetre, Gunpowder,
or any sort of Ammunition."
And His Majesty judging it necessary to prohibit the Exportation of Gunpowder, or any sort of Arms or
Ammunition, out of this Kingdom, doth therefore, with the advice of his Privy Council, hereby order, require,
prohibit and command that no Person or Persons Whatsoever (except the Master General of the Ordnance for
his Majesty's Service) do, at any time during the space of Six Months from the date of this Order in Council,
presume to transport into any parts out of this Kingdom, or carry coastways any Gunpowder, or any sort of Arms
or Ammunition, on board any Ship or Vessel, in order to transporting the same to any part beyond the Seas or
carrying the same coastways, without Leave and Permission in that behalf, first obtained from his Majesty or
his Privy Council, upon Pain of incurring and suffering the respective Forfeitures and Penalties inflicted by the
afore mentioned Act. . . .
Signed, G. Chetwynd.
The decree was published in 5 Acts Privy Council, 401, and was renewed from time to time until 1783. J. ADAMS, supra
note 67, at 412.
89 Pa. Gazette, Dec. 14, 1774, at 2, col. 3.
receiving orders for vast numbers of arms from the Americans. 90 As was originally published in a
Saturday's proclamation, it is said, was occasioned by intelligence received from
Sheffield and Birmingham of amazing quantities of fire arms, & c. being nearly ready to be
sent to America, in consequence of an order received from thence some time since.
Two vessels, laden with gun-powder and other military utensils, bound for the other
side of the Atlantic, were stopped at Gravesend on Monday by the out clearers, in
consequence of the King's Proclamation inserted in Saturday night's Gazette. . . .
A letter received in town from an English Gentleman at Brest says, that a french
frigate and a snow lately sailed from that port for America, laden with firelocks, gunpowder,
The letters received for Friday from Boston, dated the 21st of September, are of the
most alarming nature. They assert, that the inhabitants of Boston, and of the province of
Massachusetts Bay are now in (p g .no) arms. . . ." 91
The royal proclamation meant the immediate stoppage of firearms shipments going to
America. "Some ships fitting out at Liverpool could not have permission to take on board any
gun-powder, guns, or swords, . . . which . . . proves the fears of the ministry, respecting America, to
be very great. " 92 An American sympathizer in England asserted that "the proclamation against sending
guns and gun powder out of this kingdom will be of very little use or effect, because the Americans
will certainly procure whatever quantity of them they want from Holland, France, and Spain. . . ." 93
The royal instructions and a secret letter from Lord Dartmouth to the colonial governors
directing the prohibition of importation of firearms and ammunition into America was revealed by the
governor of Rhode Island. Upon receiving it, the Boston patriots sent the news by Paul Revere to
their friends in New Hampshire, who proceeded to seize muskets and one-hundred barrels of
gunpowder from Fort William and Mary at Portsmouth. 94
This action was justified by a New Hampshire patriot who described the import ban as a
violation of the right to keep and bear arms. A Watchman recalled the lesson of the ancient
Carthaginians, who complied with the demand "that they must deliver up all their Arms to the
Romans," only to be destroyed." 95 He continued:
Could they [the Ministry] not have given up their Plan for enslaving America without
seizing. . . all the Arms and Ammunition? and without soliciting and finally obtaining an
Order to prohibit the Importation of warlike Stores in the Colonies? . . . And shall we like the
Carthaginians, peaceably surrender our Arms to our Enemies, in Hopes of obtaining in Return
the Liberties we have so long been contending for? . . .
I . . . hope that no Person will, at this important Crisis, be unprepared to act in his
own Defence, should he by Necessity be driven thereto. And I must here beg Leave to
recommend to the Confederation of the People of this Continent, Whether, when we are by an
arbitrary Decree prohibited the having Arms and Ammunition by Importation, we have not
Pa. Gazette, Dec. 21, 1774, at 3, cols. 1-2.
Mass. Gazette, Dec. 29, 1774, at 3, col. 1.
Conn. Courant, Jan. 9, 1775, at 2, col. 2.
J. Adams, supra note 67, at 412; J. Alden, supra note 30, at 224.
N.H. Gazette and Historical Chron., Jan. 13, 1775, at 1, col. 1.
by the Law of Self Preservation, a Right to seize upon all those within our Power, in order to
defend the LIBERTIES which GOD and Nature have given us . . .? 96
The same arguments were being made in England by the American (pg.ni) sympathizers.
Edmund Burke pointed out in Parliamentary debates in 1775 that such injustices had been tried before
Sir, during that state of things, parliament was not idle. They attempted to subdue the
fierce spirit of the Welsh by all sorts of rigorous laws. They prohibited by statute the sending
all sorts of arms into Wales, as you prohibit by proclamation (with something more of doubt
on the legality) the sending arms to America. They disarmed the Welsh by statute, as you
attempted, (but still with more question on the legality) to disarm New England by an
instruction. They made an Act to drag offenders from Wales into England for trial, as you
have done (but with more hardship) with regard to America. 97
Meanwhile, searches and seizures of arms and ammunition were being stepped up in the
Boston area. 98 An account published in April 1775 alleges that troops killed several people along a
road during the following seizure:
The Neck Guard seized 13,425 musket cartridges with ball, (we suppose through the
information of some dirty scoundrel, of which we have now many among us) and about 300
lb. of ball, which we were carrying into the country — this was private property. — The owner
applied to the General first, but he absolutely refused to deliver it. 99
One writer linked this illegal seizure to the import ban as follows:
It is said that the troops, under your command, have seized a number of cartridges
which were carrying out of the town of Boston, into the country; and as you were pleased to
deny that you had meddled with private property, to the President of the Continental Congress,
I would gladly be informed on what different pretence you now meddled with those cartridges
.... I cannot conceive you will urge the late ridiculous proclamation [banning export of arms
and ammunition to America] in defence of the action. That CREATURE, absurd and strained
as it is, can have no reference to the carriage of powder and shot from any one inland place
to another. But admitting it had, are Royal Proclamations again to be forced upon us for
LAWS? I can, indeed, Sir, account for your conduct in this and many other instances, upon
no other footing than that of an actual conspiracy to overthrow the laws and constitution of
the country you are sworn to protect . . . . 10 °
Although not subjected to the same intense repression as New England, the other colonies
saw the import ban as violative of the right to keep and bear arms. For example, the General
Committee, South ( Pg .ii2) Carolina's patriotic governing body, found that "by the late prohibition of
exporting arms and ammunition from England, it too clearly appears a design of disarming the people
97 18 Cobbett, Parliamentary History of England 512 (1813).
98 Conn. Courant, Apr. 3, 1775, at 2, Col. 2.
100 Newport Mercury (R.I.), Apr. 10, 1775, at 2, col. 1.
of America, in order the more speedily to dragoon and enslave them . . . . But the worst was yet
E. Gage Disarms the People of Boston and Declares Martial Law
When governments conduct police actions involving searches and seizures for contraband,
for every successful seizure many items go undetected. So it was that the provincials accumulated
vast stores of arms and ammunition, and secreted them at some thirty private homes and farms in
Concord. 102 Gage anticipated orders from England to seize the patriots' arms, and on April 15, 1775
Lord Dartmouth wrote to the General to do just that. 103 "The policy of disarming the people had been
acted on, though it had not been followed up very energetically. The indications now were, that this
policy would be carried out in earnest." 104
As Gage planned his search- and- seizure operation against Concord, all able-bodied males ages
16 through 60 of that town, from its gentlemen and yeomen to its laborers and apprentices, were
carrying their muskets everywhere they went. 105 It should be noted that these minutemen and militia
were in fact the people who provided their own arms. 106
As the British began their march into the countryside on that day of April 19, 1775,
Lexington's militiamen responded to the alarm, assembled at the town common, and began exercising
with their arms. 107 The widely published American account of what happened when the Redcoats
arrived, began with the order shouted by British Major Pitcairn:
"Disperse you Rebels — Damn you, throw down your Arms and disperse. " Upon which the
Troops huzz'd, and immediately one or two Officers discharged their Pistols, which were
instantaneously followed by the Firing of four or five of the Soldiers, then there seemed to be
a general discharge from the whole Body. 108 ( P g.ii3)
While not skirmishing with the armed citizens of Lexington and Concord, the troops searched
the farms and houses for arms and ammunition. 109 Some were seized and destroyed, while other
supplies escaped seizure due to the artifice of Concord's women, who talked soldiers out of searching
certain rooms of houses. 110
Three days after Lexington and Concord, Gage represented to the Selectmen of Boston that
"there was a large body of men in arms" hostilely assembled, and that the inhabitants could be injured
if the soldiers attacked. The next day a town committee met with Gage, who promised:
that upon the inhabitants in general lodging their arms in Faneuil Hall, or any other convenient
place, under the care of the selectmen, marked with the names of the respective owners, that
J. Drayton, Memoirs of the American Revolution as Relating to South Carolina 166 (1821).
R. Gross, supra note 78, at 69.
J. ADAMS, supra note 67, at 418.
R. Frothingham, supra note 33, at 454.
R. GROSS, supra note 78, at 69-70. Excluded from the militia were the town's Harvard students and a dozen black
Only a few poor men had to borrow weapons. Id. at 61.
Essex Gazette, Apr. 25, 1775, at 3, col. 3.
R. Gross, supra note 78, at 120-23.
all such inhabitants as are inclined, may depart from the town .... And that the arms
aforesaid at a suitable time would be return'd to the owners. 111
The committee recommended "that the town accept of his excellency's proposal, and will
lodge their arms with the selectmen accordingly." 112 "The town unanimously accepted of the
foregoing report, and desired the inhabitants would deliver their arms to the Selectmen as soon as
may be." 113 While the agreement called for the temporary safekeeping of the arms in the hands of the
selectmen, Gage must have planned all along to seize them, and the selectmen may have been aware
of this plan. British Lieutenant John Barker kept a diary with the following entry:
The Townspeople have to day given up their Arms to the Select Men, who are to deliver them
over to the Gen[era]l. I fancy this will quiet him a little for he seemed apprehensive that if the
Lines shou'd be attack'd the Townspeople wou'd raise and assist; they wou'd not give up their
Arms without the Gen[era]l promising that they shou'd have leave to quit the Town as many
as pleased. 114
In his contemporary account, Richard Frothingham noted:
On the 27th of April the people delivered to the selectmen 1778 firearms, 634 pistols, 973
bayonets, and 38 blunderbusses; and on the same day it was announced in a town-meeting,
that General Gage had given permission to the inhabitants to remove out of town, with their
effects, either by land or by water; and applications for passes were to be made ( Pg .ii4) to
General Robertson. 115
A sample of one of the passes reads: "Boston, May, 1775. Permit [name illegible], together with his
family, consisting of seven persons, and their effects, to pass over the lines between sunrise and
sunset. By order of his Excellency the Governor. No arms nor ammunition is allowed to pass nor
The committee continued to meet with Gage through April 30, when it reported to the town:
"The committee waited on his Excellency General Gage with the papers containing the account of
the arms delivered to the selectmen, and the return made to them by the constables of the town
relative to the delivery of the arms in their respective wards." 117
An editorial described the background in more detail and told the predictable result. The
Sunday after the battle at Lexington, a town meeting chose a committee of selectmen to meet with
The General covenanted with them — that if the inhabitants of Boston would give up
their arms and ammunition, and not assist against the King's troops, they should immediately
be permitted to depart with all their effects, merchandise included; finally, the inhabitants gave
Essex Gazette, Apr. 23, 1775, at 4, col. 2.
Id. at col. 3.
The British in Boston 38 (1924).
R. Frothingham, History of the Siege of Boston 95 (1903).
S. Halbrook, supra note 23, at 19.
Conn. Courant, July 17, 1775, at 4, col. 3 (attested copy of the proceedings between Gage and Selectmen, Apr. 30,
up their arms and ammunition — to the care of the Selectmen: the General then set a guard over
the arms . . . . 118
Gage was then in a position to, and did, refuse the passage of both merchandise and people. 119 On the
day Gage announced that no Bostonian could leave, "a town meeting was to be held in Boston, when
the inhabitants were determined to demand the arms they had deposited in the hands of the selectmen,
or have liberty to leave town." 120
The Massachusetts Provincial Congress sent the following protest to Gage:
We think it our duty to remonstrate to your excellency, that, from the papers
communicated to us by the said selectmen, it appeared, that the inhabitants were promised,
upon surrendering their arms, that they should be permitted to leave the town, and carry with
them their effects. The condition was immediately complied with, on the part of the people;
since which, though a number of days have elapsed, but a very small proportion of the
inhabitants have been allowed to take the benefit of your covenant.ipg.ii5)
We would not affront your excellency by the most distant insinuation, that you
intended to deceive and disarm the people, by a cruel act of perfidy. A regard to your own
character, as well as the fatal consequences which will necessarily result from the violation
of your solemn treaties, must [suggest] sufficient reasons, to deter a gentleman of your rank
and station from so injurious a design. But your excellency must be sensible, that a delay of
justice is a denial of it, and extremely oppressive to the people now held in duress. 121
An anonymous patriot attacked "the perfidious, the truce-breaking Thomas Gage" 122 in the
latter's dealings with the people of Boston as follows:
But the single breach of the capitulation with them, after they had religiously fulfilled their
part, must brand your name and memory with eternal infamy — the proposal came from you
to the inhabitants by the medium of one of your officers, through the Selectmen, and was, that
if the inhabitants would deposit their fire-arms in the hands of the Selectmen, to be returned
to them after a reasonable time, you would give leave to the inhabitants to remove out of
town with all their effects, without any lett or molestation. The town punctually complied,
and you remain an infamous monument of perfidy, for which an Arab, a Wild Tartar or
Savage would dispise [sic] you!!! 123
On June 12, Gage proclaimed martial law and offered a pardon to all who would lay down
their arms except Samuel Adams and John Hancock. 124 The decree was suggested by Lord
Dartmouth, the British Secretary of State, and drafted by General Burgoyne. 125 A patriot responded
Conn. Courant, May 8, 1775, at 3, col. 1.
Conn. J., May 19, 1775, at 6, col. 2.
Journals of the Provincial Congress of Massachusetts in 1774 and 1775, 213 (1838).
Conn. Courant, June 19, 1775, at 4, col. 2.
Conn. J., June 21, 1775, at 3, cols. 1-2.
J. Alden, supra note 30, at 263-64.
are you not ashamed to throw out such an insult upon human understanding, as to bid people
disarm themselves till you and your butchers murder and plunder them at pleasure! We well
know you have orders to disarm us, and what the disposition of the framers of these orders
is, if we may judge from the past, can be no secret. 126
A patriot in a more humorous mood offered a poem entitled "Tom Gage's Proclamation," 127 which
told how the general had sent an expedition "the men of Concord to disarm" 128 and how he afterwards
Yet e'er I draw the vengeful sword
I have thought fit to send abroad
This present gracious Proclamation,
Of purpose mild the demonstration;
That whosoe'er keeps gun or pistol,
I'll spoil the motion of his systole;
Or, whip his breech, or cut his weason
As has the measure of his Treason: —
But every one that will lay down
His hanger bright, and musket brown,
Shall not be beat, nor bruis'd, nor bang'd,
Much less for past offences, hang'd,
But on surrendering his toledo,
Go to and fro unhurt as we do: —
But then I must, out of this plan, lock
Both SAMUEL ADAMS and JOHN HANCOCK;
For those vile traitors (like debentures)
Must be tuck'd up at all adventures;
As any proffer of a pardon,
Would only tend those rogues to harden: —
But every other mother's son,
The instant he destroys his gun,
(For thus doth run the King's command)
May, if he will, come kiss my hand. . . .
Meanwhile let all, and every one
Who loves his life, forsake his gun . . . . 129
The references to several types of arms in the above poem as well as in the inventory of arms
seized by Gage in Boston 130 warrant explanation. What types of arms did the colonists believe they
had a right to keep and bear?
126 Pa. Evening Post, June 27, 1775, at 1, cols. 1-2.
127 Conn. Courant, July 17, 1775, at 4, col. 1.
130 The selectmen's lists of names and specific arms turned in and seized by Gage are not known to be extant. Letters
from Massachusetts Historical Society to Stephen P. Halbrook (Nov. 25, 1988) and from William L. Clements Library, University
of Michigan (Jan. 30, 1989), which houses the Gage collection. Such a list would be valuable both to historians and to students of
The arms the people of Boston turned in to their selectmen included 1778 firearms, apparently
muskets and other shoulder weapons, 634 pistols, 38 blunderbusses, and 973 bayonets. 131 The above
poem mentions "gun or pistol" separately, for as Noah Webster, who would play an important role
in ratifying the Constitution, wrote in America's first dictionary: "the smaller species [of guns] are
called muskets, carbines, (pg.117) fowling pieces, &c. But one species of fire-arms, the pistol, is never
called a gun." 132 The poem also referred to a "musket brown," meaning a Brown Bess musket, which
was used with a bayonet. 133 This was the official British infantry weapon, which many Americans
owned personally or captured from the British. 134 The colonists imported other military muskets from
France, and made highly accurate, long range Pennsylvania rifles (owned mostly by civilians)
The carbine is a short-barreled shoulder weapon designed to fire a single projectile. The
blunderbuss is a short-barreled shotgun designed to fire multiple projectiles, and was popular with
civilians for defense against highwaymen or a group of intruders attacking a house. 136 Civilians in
urban areas and travellers commonly carried pocket pistols, and larger pistols were widely used for
military purposes. 137 The pistols turned in and seized by Gage may well have been mostly pocket
pistols, although any militia horseman who turned in pistols would have surrendered larger pieces.
It seems probable that many would have turned in junk or defective weapons, and secreted their
The poem mentions two types of swords, the hanger (a short military sword) and the Toledo,
named after its place of production in Spain. 138 The small sword was the popular civilian pattern in
Such was the vast array of firearms and edged weapons which the colonists believed they
were entitled to keep and bear. Seizure of these arms from the peaceable citizens of Boston who were
not even involved in hostilities sent a message to all of the colonies that fundamental rights were in
The final break came when the Continental Congress adopted the Declaration of Causes of
Taking Up Arms on July 6, 1775, which had been drafted by Thomas Jefferson and John Dickinson
and which complained:
It was stipulated that the said inhabitants having deposited their arms with their own
magistrates, should have liberty to depart .... They accordingly delivered up their arms, but
in open violation of honor, in defiance of the obligations of treaties, which even savage nations
esteem sacred, the governor ordered the arms deposited as aforesaid, that they i Pg .i 18) might be
preserved for the owners, to be seized by a body of soldiers. . . . 140
131 R. Frothingham, supra note 1 15, at 95.
132 N. Webster, An American Dictionary of the English Language (1828) (defining "gun").
133 G. Neumann, Weapons of the American Revolution 14, 22 (1967).
135 Id. at 22, 134-35.
136 Id. at 36, 38.
137 Id. at 150-51.
138 Id. at 216-17.
139 Id. at 217.
140 Conn. Courant, July 17, 1775, at 2, col. 1. The Continental Congress also adopted an address "To the People of
Ireland" which complained that "the citizens petitioned the General for permission to leave the town, and he promised, on
surrendering their arms, to permit them to depart with their other effects; they accordingly surrendered their arms, and the General
violated his faith . . . ." Conn. Courant, Aug. 21, 1775, at 1, col. 3.
Even though it mentioned only the disarming of Boston, by the time the Declaration passed,
the colonists believed that the Ministry's intention was to disarm all Americans. The Virginia House
of Burgesses responded to Governor Dunmore's seizure of gunpowder in that state just after
Lexington and Concord as follows:
The inhabitants of this country, my Lord, could not be strangers to the many attempts
in the northern colonies to disarm the people, and thereby deprive them of the only means of
defending their lives and property. We know, from good authority, that the like measures were
generally recommended by the Ministry, and that the export of pow[d]er from Great Britain
had been prohibited. Judge then how very alarming a removal of the small stock which
remained in the public magazine, for the defence of the country, and the stripping of the guns
of their locks, must have been to any people, who had the smallest regard for their security. 141
Patriot newspapers throughout the colonies published a report from London that in fact all
the colonists were to be disarmed:
It is reported, that on the landing of the General Officers, who have sailed for America, a
proclamation will be published throughout the provinces inviting the Americans to deliver up
their arms by a certain stipulated day; and that such of the colonists as are afterwards proved
to carry arms shall be deemed rebels, and be punished accordingly. 142
Such reports could have only prompted more colonists to take up arms and join the resistance.
The right to have arms — and the rights protected thereby — would be protected ultimately by the use
of those arms against governmental oppression. The Declaration of Independence of 1776 was based
on the philosophy that armed citizens may rightfully free themselves from tyranny through armed
By 1777, confident of a British military victory, Colonial Under- secretary William Knox
circulated to members of the Ministry a comprehensive policy entitled "What is Fit to be Done with
America?" 143 Besides a state church, unlimited tax power, a standing army, and a ( P g.ii9) governing
aristocracy, the plan anticipated:
The Militia Laws should be repealed and none suffered to be re-enacted, & the Arms of all
the People should be taken away, . . . nor should any Foundery or manufactuary of Arms,
Gunpowder, or Warlike Stores, be ever suffered in America, nor should any Gunpowder,
Lead, Arms or Ordnance be imported into it without Licence . . . . 144
But the British could not take away the arms of all of the people, and independence was won.
III. Toward the Adoption of the Second Amendment
Va. Gazette (Williamsburg), Aug. 5, 1775, at 2, col. 1.
Va. Gazette (Williamsburg), June 24, 1775, at 1, col. 1.
1 Sources of American Independence 176 (1978).
Given the primacy of deprivation of the right to keep and bear arms as a grievance leading to
the Revolution, it was perhaps inevitable that this right would be recognized explicitly in four of the
eight declarations of rights adopted in the Revolutionary period. 145 Pennsylvania and Vermont
adopted the following language: "That the people have a right to bear arms for the defense of
themselves, and the state . . . . " 146 North Carolina declared: "That the people have a right to bear arms
for the defense of the state . . . ." 147 Given that Massachusetts took the brunt of Gage's efforts to seize
arms from homes, it is not surprising that John Adams added the term "keep" to the declaration of
that state, which read: "The people have a right to keep and bear arms for the common defense." 148
Virginia did not adopt Thomas Jefferson's proposed bill of rights, which included the
provision: "No freeman shall ever be debarred the use of arms. " 149 However, George Mason's draft,
which was adopted, declared "that a well regulated militia, composed of the body of the people,
trained to arms, is the proper, natural, and safe defense of a free state . . . ." 150 The three other states
with bills of rights also sanctioned a well regulated militia, i.e., an armed populace. 151 Although six
states had no written bills of rights, they were just as committed to the rights to bear arms and a free
press as those with formal declarations. 152
When the Constitution was proposed in 1787 without a bill of ( Pg .i20) rights, the federalists
argued that one was unnecessary, since Congress had no enumerated power to control rights such
as a free press and bearing arms. 153 In The Federalist No. 29 Alexander Hamilton wrote that the
government should not require:
the great body of yeomanry and of the other classes of citizens to be under arms for the
purpose of going through military exercises and evolutions, as often as might be necessary to
acquire the degree of perfection which would entitle them to the character of a well regulated
militia. . . .
Little more can reasonably be aimed at with respect to the people at large than to have
them properly armed and equipped. . . .
. . . This will not only lessen the call for military establishments, but if circumstances
should at any time oblige the government to form an army of any magnitude that army can
never be formidable to the liberties of the people while there is a large body of citizens, little
if at all inferior to them in discipline and the use of arms, who stand ready to defend their
rights and those of their fellow citizens. 154
In The Federalist No. 46, James Madison, in contending that "the ultimate authority . . .
resides in the people alone," 155 predicted that encroachments by the federal government would
See S. HALBROOK, supra note 23, at 21-77.
Pa. Dec. of Rights, art. xm (1776); Vt. Const, art. I, 15 (1777).
N.C. Dec. of Rights, art. XVH" (1776).
Mass. Dec. of Rights, art. XVH (1780).
1 Jefferson, Papers 344-45 (1951).
Va. Dec of Rights, art. xm (1776).
Del. Dec of Rights, art. XVJU (1776); Md. Dec of Rights, art. XXV (1776); N.H. Dec of Rights, art. XXIV
152 S. Halbrook, supra note 23, at 79-106.
153 On the controversies surrounding the Constitution and Bill of Rights in the 1787-179 1 period leading to the adoption
of the second amendment, see The Evolution of A Constitutional Right, supra note 23, at 65-84 (1984).
154 Madison, Hamilton, & Jay, The Federalist Papers 184-85 (Arlington House ed.).
155 Id. at 294.
provoke resistance and an "appeal to a trial of force." 156 The regular army of the United States
government "would be opposed [by] a militia amounting to near half a million citizens with arms in
their hands." 157 Alluding to "the advantage of being armed, which the Americans possess over the
people of almost every other nation," 158 Madison continued, "[notwithstanding the military
establishments in the several kingdoms of Europe, which are carried as far as the public resources will
bear, the governments are afraid to trust the people with arms." 159 If the people were armed and
organized into militia, "the throne of every tyranny in Europe would be speedily overturned in spite
of the legions which surround it." 160
The Founding Fathers were even more explicit in insisting that American citizens be able to
possess military-type small arms. Noah Webster, the influential federalist, stated: ( Pg .i2i)
Before a standing army can rule, the people must be disarmed; as they are in almost every
kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword:
because the whole body of the people are armed, and constitute a force superior to any band
of regular troops that can be, on any pretence, raised in the United States. 161
Similarly, Tench Coxe, a friend of James Madison and a tireless federalist, wrote:
The power of the sword, say the minority of Pennsylvania, is in the hands of
Congress. My friends and countrymen, it is not so, for THE POWERS OF THE SWORD
ARE IN THE HANDS OF THE YEOMANRY OF AMERICA FROM SIXTEEN TO
SIXTY. The militia of these free commonwealths, entitled and accustomed to their arms, when
compared with any possible army, must be tremendous and irresistible. Who are the militia?
are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own
bosom. Congress have no power to disarm the militia. Their swords, and every other terrible
implement of the soldier, are the birth-right of an American. . . . [T]he unlimited power of the
sword is not in the hands of either the federal or state governments, but, where I trust in God
it will ever remain, in the hands of the people. 162
The antifederalists demanded that these promises be made in writing. Insisting on a bill of
rights, Richard Henry Lee wrote that "to preserve liberty, it is essential that the whole body of the
people always possess arms, and be taught alike, especially when young, how to use them. . . ." 163 The
Supreme Court recently noted, "[t]he remarks of Richard Henry Lee are typical of the rejoinders of
the Antifederalists. . . . The concerns voiced by the Antifederalists led to the adoption of the Bill of
Rights. . . . The fears of the Antifederalists were well founded." 164
Given his role in the pre-Revolutionary period, it is hardly surprising that Samuel Adams
would propose in the Massachusetts ratifying convention a bill of rights affirming "that the said
156 Id. at 298.
158 Id. at 299.
160 Id. at 300.
wi n Webster, An Examination into the leading Principles of the Federal Constitution, in PAMPHLETS ON THE
Constitution of the United States 56 (1888).
162 2 Documentary History of the Constitution of the United States (Mfm. Supp.) 1778-80 (1976).
163 R. Lee, Additional Letters From the Federal Farmer 170 (1788).
164 Minneapolis Star v. Minnesota Comm. of Rev., 460 U.S. 575, 584 (1983).
Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the
rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from
keeping their own arms. . . ." 165 Similarly, the proposals adopted in the Dissent of Minority (pg.122) at
the Pennsylvania convention included the following:
That the people have a right to bear arms for the defense of themselves, their state, or the
United States, and for killing game, and no law shall be enacted for disarming the people
except for crimes committed or in a case of real danger of public injury from individuals. . .
New Hampshire was the first state convention to recommend that the Constitution include
a bill of rights, including a provision that "Congress shall never disarm any citizen, unless such as are
or have been in actual rebellion." 167 In Virginia, George Mason added a new clause to that state's
declaration which the convention demanded that the federal constitution guarantee: "That the people
have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people
trained to arms, is the proper, natural, and safe defence of a free state . . . ." 168 The conventions of
North Carolina, New York, and Rhode Island repeated this insistence on a federal bill of rights with
the clause, "that the people have a right to keep and bear arms. . . ." 169
When James Madison proposed the Bill of Rights to Congress in 1789, he wrote that the
proposed amendments concerning the press and arms "relate first to private rights. . . ." 170 Ten days
after its introduction, federalist leader Tench Coxe wrote of what became the second amendment:
As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize,
and as the military forces which must be occasionally raised to defend our country, might
pervert their power to the injury of their fellow-citizens, the people are confirmed by the next
article in their right to keep and bear their private arms. 171
Madison endorsed Coxe's analysis, which was reprinted without contradiction. 172 In fact, what
became the second amendment was seen as embodying the proposal drafted by Samuel Adams, "that
the said constitution be never construed to authorize congress ... to prevent the people of the United
States, who are peaceable citizens, from keeping their own arms . . . ." 173 ( Pg .i23)
St. George Tucker, the first major commentator on the Bill of Rights, 174 explained the second
amendment as follows: "The right of self-defense is the first law of nature .... Wherever . . . the right
2 B. Schwartz, The Bill of Rights 681 (1971).
2 Documentary History of the Ratification of the Constitution 597, 623-24 ( 1976).
2 B. Schwartz, supra note 165, at 761.
3 J. Elliot, Debates in the Several State Conventions 659 (1836).
1 J. Elliot, supra note 168, at 327-28, 335; 4 J. Elliot, supra note 168, at 244.
12 Madison Papers 193-94 (1979).
Remarks on the First Part of the Amendments to the Federal constitution, Federal Gazette, June 18, 1789, at 2, col.
See 12 Madison Papers at 239-40, 257 (1979).
Independent Gazetteer (Philadelphia), Aug. 20, 1789, at 2, col. 2.
New York Times v. Sullivan, 376 U.S. 254, 296-97 (1964).
of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if
not already annihilated, is on the brink of destruction." 175
Such, then, is how "the arbitrary encroachments of the Crown on the liberty of the subjects"
prompted adoption of the second amendment. This history demonstrates that, to the patriots who
were interested in preserving civil liberty, the mere possibility in 1768 that the government would
seize arms gave rise to a robust philosophical defense of what was considered a fundamental, personal
right. When in 1774 the rulers of Boston dared even to consider disarming the inhabitants, thousands
of armed citizens felt justified in assembling and marching to the town to demonstrate their
opposition. The Founders considered a ban on importation of firearms and ammunition to violate the
individual's right to obtain and possess arms.
The patriots' aversion to the governmental policy of searching persons, places, and houses,
and seizing firearms, demonstrates the close connection between the second amendment right to keep
arms and the fourth amendment prohibition on warrantless searches and seizures. Gage's trickery in
inducing the inhabitants to turn in their arms for "temporary safekeeping" and then in seizing those
arms gave rise to the traditional American skepticism toward benevolent rulers who promise only
limited infringements on such rights . Impo sition of martial law only exasperated the American citizen's
belief that he or she is entitled to possess military- style small arms for parity against an oppressive
As social philosophers recognize, the mere selection of a topic for study, and the recognition
of selected events as significant, imply value judgments. 176 Hopefully, its presence in the Bill of Rights
excuses interest ( Pg .i24) in what has been termed "the embarrassing Second Amendment." 177
Unfortunately, scholars have never analyzed the "arbitrary encroachments of the Crown on the liberty
of the subject" which gave rise to the second amendment, perhaps because that hidden history could
conflict with the questionable premise that banning firearms would not infringe on individual rights.
Prohibitionists assert that there is no evidence of a pre-Revolutionary American belief in a personal
right to bear arms or of American protest against British infringement of this right. 178
To restate the postulate of social philosophers, the failure to select a topic for study, or
consignment of the history of a concept to the Orwellian memory hole, implies a value judgment as
well. When the concept subjected to this treatment is a guarantee in the Bill of Rights, it remains to
175 1 Tucker, Blackstone's Commentaries 300 ( 1803) (appendix). Henry St. George Tucker, another major
commentator, wrote that "the right of bearing arms" was one of the "protections or barriers [which] have been erected which serve
to maintain inviolate the three primary rights of personal security, personal liberty, and private property." 1 TUCKER,
Commentaries on the Laws of Virginia 43 (1831). Blackstone's influence is just as clear here as it was on Samuel Adams'
defense of this right in 1768-69.
176 May Brodbeck summarizes Max Weber's observations about how values intrude into objectivity as follows: "First,
they determine the subject matter we select for study, and, secondly, they influence our judgment about the cause of a specific event.
By virtue of these evaluative choices, we endow certain situations and not others with 'significance.'" M. BRODBECK, READINGS IN
the Philosophy of the Social Sciences 80 (1968).
The social function of condemning, simply by ignoring, important human events to the dust bin of history, is well
recognized by "radical" historians such as Howard Zinn. H. ZlNN, THE POLITICS OF HISTORY 35-55 (1970).
177 S. Levinson, The Embarrassing Second Amendment, 99 YaleL. J. 637 (1989).
178 Comment, Banning Handguns: Quilici v. Village of Morton Grove and the Second Amendment, 60 WASH. U.L.Q.
1087, 1093 (1982).
be seen whether the libertarian hopes of the Revolutionary Founding Fathers will be realized in the
third century of the American body politic.